Exhibit (g)(vii)
SUB-CUSTODY AGREEMENT
AGREEMENT, dated as of February 28, 2001, by and among ▇▇▇▇▇▇▇▇
FUNDS, INC., a Wisconsin corporation with its place of business
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, on behalf
of its investment portfolios listed on Exhibit 1, attached hereto and
incorporated by reference, (the "Customer"), ▇▇▇▇▇▇▇▇ & ILSLEY TRUST
COMPANY, a trust company bank organized and existing under the laws
of the State of Wisconsin, (the "Custodian") and CUSTODIAL TRUST
COMPANY, a bank organized and existing under the laws of the State of
New Jersey (the "Sub-Custodian").
WHEREAS, Custodian has entered into a custody agreement, dated
April 26, 1993, with Customer for the safekeeping by Custodian of
Customer's securities and other assets;
WHEREAS, Customer is an open-end diversified management
investment company registered under the 1940 Act;
WHEREAS, Customer desires Custodian to retain and employ
Sub-Custodian to act, and Sub-Custodian is willing to act, as
depository and sub-custodian of certain securities of Customer, so
that such securities may be loaned to a securities lending
arrangement between Custodian, as agent of Customer and Bear, ▇▇▇▇▇▇▇
Securities Corp. ("BS Securities"), a registered broker-dealer and an
affiliate of Sub-Custodian;
NOW, THEREFORE, Custodian and Sub-Custodian hereby agree as
follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following terms, unless
the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any person authorized by
Custodian to give Oral Instructions and Written Instructions on
behalf of Custodian and identified, by name or by office, in Exhibit
A hereto.
1.2 "Board of Directors" means the Board of Directors of
Customer or, when permitted under the 1940 Act, the Executive
Committee thereof, if any.
1.3 "Book Entry System" means a book-entry system maintained
by a Federal Reserve Bank for securities of the United States
government or of agencies or instrumentalities thereof (including
government-sponsored enterprises).
1.4 "Business Day" means any day on which banks in the State
of New Jersey and New York are open for business.
1.5 "Custody Account" means the account in the name of the
Custodian, which is provided for in Section 3.2 below.
1.6 "Domestic Securities Depository" means The Depository
Trust Company and any other clearing agency registered with the
Securities and Exchange Commission under the Securities Exchange Act
of 1934, which acts as a securities depository.
1.7 "Eligible Domestic Bank" means a bank as defined in the
------------------------
1940 Act.
1.8 "Master Repurchase Agreement" means the Master Repurchase
-----------------------------
Agreement of even date herewith between Customer and Bear, ▇▇▇▇▇▇▇ &
Co. Inc. ("Bear ▇▇▇▇▇▇▇") as it may from time to time be amended.
1.9 "Master Securities Loan Agreement" means the Master
Securities Loan Agreement of even date herewith between Custodian as
agent of Customer and BS Securities as it may from time to time be
amended.
1.10 "1940 Act" means the Investment Company Act of 1940, as
--------
amended, and the rules and regulations thereunder.
1.11 "Oral Instructions" means instructions orally transmitted
to and accepted by Sub-Custodian which are (a) reasonably believed by
Sub-Custodian to have been given by an Authorized Person, (b)
recorded and kept among the records of Sub-Custodian made in the
ordinary course of business, and (c) completed in accordance with
Sub-Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery by Custodian.
1.12 "Proper Instructions" means Oral Instructions or Written
--------------------
Instructions. Proper Instructions may be continuing Written
Instructions when deemed appropriate by Custodian and Sub-Custodian.
1.13 "Securities Depository" means any Domestic Securities
-----------------------
Depository or Foreign Securities Depository.
1.14 "Written Instructions" means written communications
received by Sub-Custodian that are (a) reasonably believed by
Sub-Custodian to have been signed or sent by an Authorized Person,
(b) sent or transmitted by letter, facsimile, central processing unit
connections, on-line terminal or magnetic tape, and (c) completed in
accordance with Sub-Custodian's requirements from time to time as to
content of instructions and their manner and timeliness of delivery
by Custodian.
ARTICLE II
APPOINTMENT OF SUB-CUSTODIAN
2.1 Appointment. Custodian hereby appoints Sub-Custodian the
custodian of all such Securities and cash belonging to Customer, and
held in those investment portfolios identified on Exhibit 1, as may
be acceptable to Sub-Custodian and from time to time delivered to it
by Custodian or others for the account of Customer.
2.2 Acceptance. Sub-Custodian hereby accepts appointment as
such sub-custodian and agrees to perform the duties thereof as
hereinafter set forth.
ARTICLE III
CUSTODY OF SECURITIES, CASH, AND OTHER ASSETS
---------------------------------------------
3.1 Segregation. All securities and non-cash property of
-----------
Customer in the possession of Sub-Custodian (other than securities
maintained by Sub-Custodian with a sub-custodian appointed pursuant
to this Agreement or in a Securities Depository or Book-Entry System)
shall be physically segregated from other such securities and
non-cash property in the possession of Sub-Custodian. All cash,
securities and other non-cash property of Customer shall be
identified as subject to this Agreement.
3.2 Custody Account
(a) Sub-Custodian shall open and maintain in its trust
department a custody account in the name of Custodian coupled with
the name of Customer, subject only to draft or order of
Sub-Custodian, in which Sub-Custodian shall enter and carry all
securities, funds and other assets of Customer which are delivered to
Sub-Custodian and accepted by it.
(b) If Sub-Custodian at any time fails to receive any
of the documents referred to in Section 3.8(a) below, then, until
such time as it receives such document, it shall not be obligated to
receive any securities of Customer into the Sub-Custody Account and
shall be entitled to return to Custodian any securities of Customer
that it is holding.
3.3 Securities in Physical Form. Sub-Custodian may, but
------------------------------
shall not be obligated to, hold securities that may be held only in
physical form.
3.4 Disclosure to Issuers of Securities. Sub-Custodian is
authorized to disclose Custodian's name, address and securities
positions in the Sub-Custody Account to the issuers of such
securities when requested by them to do so.
3.5 Appointment of Domestic Sub-Custodians. At any time and
from time to time, Sub-Custodian in its discretion may appoint and
employ any Eligible Domestic Bank as sub-custodian to held securities
and other assets of Customer that are maintained in the United States
and to carry out such other provisions of this Agreement as it may
determine, provided, however, that the employment of any such
sub-custodian shall be at Sub-Custodian's expense and shall not
relieve Sub-Custodian of any of its obligations or liabilities under
this Agreement.
3.6 Appointment of Other Agents. Sub-Custodian may employ
other suitable agents, which may include affiliates of Sub-Custodian
such as Bear ▇▇▇▇▇▇▇ or BS Securities, both of which are securities
broker-dealers, provided, however, that Sub-Custodian shall not
employ either of such affiliates to hold any collateral pledged to
Customer, or purchased by Customer, under any securities loan
agreement or repurchase agreement (whether now or hereafter in
effect) between Customer, on the one hand, and such affiliate on the
other hand. The appointment of any agent pursuant to this Section
3.6 shall not relieve Sub-Custodian of any of its obligations or
liabilities under this Agreement.
3.7 Delivery of Assets to Sub-Custodian. Sub-Custodian shall
not be responsible for any securities or other assets owned by
Customer until actually received by it.
3.8 Domestic Securities Depositories and Book-Entry Systems.
Sub-Custodian and any sub-custodian appointed pursuant to Section 3.5
above may deposit and/or maintain securities of Customer in a
Domestic Securities Depository or in a Book-Entry System, subject to
the following provisions:
(a) Prior to a deposit of securities of Customer in any
Domestic Securities Depository or Book-Entry System, Custodian shall
deliver to Sub-Custodian a resolution of the Board of Directors of
Customer, certified by an officer of Customer, authorizing and
instructing Custodian (and any sub-custodian employed by it) on an
on-going basis to deposit in such Domestic Securities Depository or
Book-Entry System all securities eligible for deposit therein and to
make use of such Domestic Securities Depository or Book-Entry System
to the extent possible and practical in connection with the
performance of its obligations under custody or sub-custody
agreements for securities belonging to Customer, including, without
limitation, in connection with loans of securities and deliveries and
returns of collateral consisting of securities.
(b) Securities of Customer kept in a Book-Entry System
or Domestic Securities Depository shall be kept in an account
("Depository Account") of Sub-Custodian (or of any sub-custodian
appointed pursuant to Section 3.5 above) in such Book-Entry System or
Domestic Securities Depository which includes only assets held by
Sub-Custodian (or such sub-custodian) as a fiduciary, custodian or
otherwise for customers.
(c) The records of Sub-Custodian with respect to
securities of Customer maintained in a Book-Entry System or Domestic
Securities Depository shall at all times identify such securities
belonging to Custodian for the account of Customer.
(d) Sub-Custodian shall provide Custodian with copies
of any report obtained by Sub-Custodian (or by any sub-custodian
appointed pursuant to Section 3.5 above) from a Book-Entry System or
Domestic Securities Depository in which securities of Customer are
kept on the internal accounting controls and procedures for
safeguarding securities deposited in such Book-Entry System or
Domestic Securities Depository.
(e) At its election, Custodian shall be subrogated to
the rights of Sub-Custodian (or of any sub-custodian appointed
pursuant to Section 3.5 above) with respect to any claim against a
Book-Entry System or Domestic Securities Depository or any other
person for any loss or damage to Customer or Custodian arising from
the use of such Book-Entry System or Domestic Securities Depository,
if and to the extent that Customer or Custodian has not been made
whole for any such loss or damage.
3.9 Relationship with Securities Depositories. No Book-Entry
System, Securities Depository, or other securities depository or
clearing agency (whether foreign or domestic) which it is or may
become standard market practice of use for the comparison and
settlement of trades in securities shall be an agent or
sub-contractor of Sub-Custodian for purposes of Section 3.6 above or
otherwise.
3.10 Limitation on Receive and Deliver Obligations.
Sub-Custodian shall be obliged to receive and deliver securities,
cash and other assets into or from the Account only as may be
required in connection with or pursuant to the Securities Loan
Agreement or the Master Repurchase Agreement and shall not otherwise
be required to make or receive from or into the Account transfers of
cash, or deliveries of securities or other assets against payment,
or, generally, to clear and settle securities transactions for
Custodian or Customer in the Account. In the case of securities and
other assets maintained outside the United States, Custodian and any
sub-custodian appointed pursuant to this Agreement may receive and
deliver such securities or other assets in accordance with the laws,
regulations, customs, procedures and practices applicable in the
relevant local market outside the United States.
3.11 Collection of Income and Other Payments.
---------------------------------------
(a) Sub-Custodian shall receive in the Account any
money or property, including without limitation and dividends,
payments of principal or other distributions or payments, on account
of securities in the Account. Sub-Custodian shall promptly notify
Custodian whenever any money or property due and payable from or on
account of any such securities is not timely received by it.
Sub-Custodian shall not, however, be required to enforce collection,
by legal means or otherwise, of any such money or other property not
paid when due, but shall receive the proceeds of such collections as
may be effected by it or its agents in the ordinary courts of its
custody and safekeeping business or of the custody and safekeeping
business of such agents.
(b) Sub-Custodian shall not be liable for, or
considered to be custodian of, any cash belonging to Custodian or any
money represented by a check, draft or other instrument for the
payment of money, until Sub-Custodian or its agents actually receive
such cash or collect on such instrument.
(c) In its sole discretion and from time to time,
Sub-Custodian may credit the Account, prior to actual receipt of
final payment thereof, with (i) proceeds from the redemption of
securities or other assets in the Account, and (ii) income from cash,
securities or other assets in the Account. Any such credit shall be
conditional upon actual receipt by Sub-Custodian of final payment and
may be reversed if final payment is not actually received in full;
provided that, in the event of any reversal in excess of $100,000,
Sub-Custodian will provide Custodian with prior notice of the
reversal. Sub-Custodian may, in its sole discretion and from time to
time, permit Custodian to use funds so credited to the Account in
anticipation of actual receipt of final payment. Any such funds
shall be repayable immediately upon demand made by Sub-Custodian at
any time prior to the actual receipt by it of all final payments in
anticipation of which funds were credited to the Account.
(d) For purposes of this Agreement, "final payment"
means payment in funds which are (or have become) immediately
available, under applicable law are irreversible, and are not subject
to any security interest, ▇▇▇▇, ▇▇▇▇ or other encumbrance.
3.12 Registration and Transfer of Securities. All securities
held by Customer that are issuable only in bearer form shall be held
by Sub-Custodian in that form, provided that any such securities
shall be held in a Securities Depository or Book-Entry System if
eligible therefore. All other securities and all other assets held
for Customer may be registered in the name of (a) Sub-Custodian as
agent, (b) any sub-custodian appointed pursuant to this Agreement,
(c) any Securities Depository, or (d) any nominee or agent of any of
them. Custodian shall furnish to Sub-Custodian appropriate
instruments to enable Sub-Custodian to hold or deliver in proper form
for transfer, or to register as in this Section 3.12 provided, any
securities or other assets delivered to Sub-Custodian which are
registered in the name of Customer, Custodian or a nominee of
Custodian.
3.13 Records. (a) Sub-Custodian shall maintain complete and
accurate records with respect to securities, funds and other assets
held for Customer, including (i) journals or other records of
original entry containing an itemized daily record in detail of all
receipts and deliveries of securities and all receipts and
disbursements of funds; (ii) ledgers (or other records) reflecting
(A) securities in transfer, if any, (B) securities in physical
possession, (C) monies and securities borrowed and monies and
securities loaned (together with a record of the collateral therefore
and substitutions of such collateral), (D) dividends and interest
received, and (E) dividends receivable and interest accrued; and
(iii) cancelled checks and bank records related thereto.
Sub-Custodian shall keep such other books and records with respect to
securities, funds and other assets of Customer which are held
hereunder as Custodian may reasonably request.
(b) All such books and records maintained by
Sub-Custodian shall (i) be maintained in a form acceptable to
Custodian and in compliance with rules and regulations of the
Securities and Exchange Commission, (ii) be the property of Customer
and at all times during the regular business hours of Sub-Custodian
be made available upon request for inspection by duly authorized
officers, employees or agents of Custodian or Customer and employees
or agents of the Securities and Exchange Commission, and (iii) if
required to be maintained under the 1940 Act, be preserved for the
periods prescribed therein.
3.14 Account Reports by Sub-Custodian. Sub-Custodian shall
furnish Custodian with a daily activity statement, including a
summary of all transfers to or from the Sub-Custody Account (in the
case of securities and other assets maintained in the United States,
on the day following such transfers). At least monthly and from time
to time, Sub-Custodian shall furnish Custodian with a detailed
statement of the securities, funds and other assets held for Customer
under this Agreement.
3.15 Other Reports by Sub-Custodian. Sub-Custodian shall
provide Custodian with such reports as Custodian may reasonably
request from time to time on the internal accounting controls and
procedures for safeguarding securities which are employed by
Sub-Custodian or any sub-custodian appointed pursuant to this
Agreement.
3.16 Proxies and Other Materials. (a) Unless otherwise
instructed by Custodian, Sub-Custodian shall promptly deliver to
Custodian all notices of meetings, proxies and proxy materials which
it receives regarding securities held in the Custody Account. Before
delivery them to Custodian, Sub-Custodian shall cause all proxies
relating to such securities which are not registered in the name of
Customer to be promptly executed by the registered holder of such
securities, without indication of the manner in which such proxies
are to be voted. Unless otherwise instructed by Custodian, neither
Sub-Custodian nor any of its agents shall exercise any voting rights
with respect to securities held hereunder.
(b) Unless otherwise instructed by Custodian,
Sub-Custodian shall promptly transmit to Custodian all other written
information received by Sub-Custodian from issuers of securities held
in the Custody Account. With respect to tender or exchange offers
for such securities, Sub-Custodian shall promptly transmit to
Custodian all written information received by Sub-Custodian from the
issuers of the securities whose tender or exchange is sought and from
the party (or its agents) making the tender or exchange offer. If
Customer desires to take action with respect to any tender offer,
exchange offer or other similar transaction, Custodian shall notify
Sub-Custodian (i) in the case of securities maintained outside the
United States, such number of Business Days prior to the date on
which Sub-Custodian is to take such action as will allow
Sub-Custodian to take such action in the relevant local market for
such securities in a timely fashion, and (ii) in the case of all
other securities, at least five Business Days prior to the date on
which Sub-Custodian is to take such action.
3.17 Co-operation. Sub-Custodian shall cooperate with and
supply necessary information to the entity or entities appointed by
Customer to keep the books of account of Customer and/or to compute
the value of the assets of Customer.
ARTICLE IV
CERTAIN SECURITIES LENDING TRANSACTIONS
---------------------------------------
4.1 Transactions. If and to the extent that the necessary
------------
funds and securities have been entrusted to it under this Agreement,
and subject to Sub-Custodian's right to foreclose upon and liquidate
collateral pledged to it pursuant to Section 7.3 below,
Sub-Custodian, as agent of Custodian, shall from time to time (and
unless Custodian gives it Proper Instructions to do otherwise) make
for the account of Custodian the transfers of funds and deliveries of
securities which Customer is required to make pursuant to the Master
Securities Loan Agreement and shall receive for the account of
Custodian the transfers of funds and deliveries of securities which
the borrower under the Master Securities Loan Agreement is required
to make pursuant thereto. Sub-Custodian shall make and receive all
such transfers and deliveries pursuant to, and subject to the terms
and conditions of, the Master Securities Loan Agreement.
4.2 Collateral. Sub-Custodian shall daily ▇▇▇▇ to market, in
the manner provided for in the Master Securities Loan Agreement, all
loans of securities which may from time to time be outstanding
thereunder.
4.3 Defaults. Sub-Custodian shall promptly notify Custodian
of any default under the Master Securities Loan Agreement (as such
term "default" is defined therein) of which it has actual knowledge.
4.4 Master Securities Loan Agreement. Sub-Custodian hereby
acknowledges its receipt from Custodian of a copy of the Master
Securities Loan Agreement. Custodian shall provide Sub-Custodian,
prior to the effectiveness thereof, with a copy of any amendment to
the Master Securities Loan Agreement.
ARTICLE V
CERTAIN REPURCHASE TRANSACTIONS
-------------------------------
5.1 Transactions. If and to the extent that the necessary
------------
funds and securities have been entrusted to it under this Agreement,
and subject to Sub-Custodian's right to foreclose upon and liquidate
collateral pledged to it pursuant to Section 7.3 below,
Sub-Custodian, as agent of Custodian, shall from time to time (and
unless Custodian gives it Proper Instructions to do otherwise) make
for the account of Custodian the transfers of funds and deliveries of
securities which Customer is required to make pursuant to the Master
Repurchase Agreement and shall receive for the account of Custodian
the transfers of funds and deliveries of securities which the seller
under the Master Repurchase Agreement is required to make pursuant
thereto. Sub-Custodian shall make and receive all such transfers and
deliveries pursuant to, and subject to the terms and conditions of,
the Master Repurchase Agreement.
5.2 Collateral. Sub-Custodian shall daily ▇▇▇▇ to market the
securities purchased under the Master Repurchase Agreement and held
in the Sub-Custody Account, and shall give to the seller thereunder
any such notice as may be required thereby in connection with such
▇▇▇▇-to-market.
5.3 Events of Default. Sub-Custodian shall promptly notify
Custodian of any event of default under the Master Repurchase
Agreement (as such term "event of default" is defined therein) of
which it has actual knowledge.
5.4 Master Repurchase Agreement. Sub-Custodian hereby
acknowledges its receipt from Custodian of a copy of the Master
Repurchase Agreement. Custodian shall provide Sub-Custodian, prior
to the effectiveness thereof, with a copy of any amendment to the
Master Repurchase Agreement.
ARTICLE VI
CONCERNING THE SUB-CUSTODIAN
6.1 Standard of Care. Sub-Custodian shall be held to the
exercise of reasonable care in carrying out its obligations under
this Agreement, and shall be without liability to Custodian or
Customer for any loss, damage, cost, expense (including attorneys'
fees and disbursements), liability or claim which does not arise from
willful misfeasance, bad faith or negligence on the part of
Sub-Custodian. Sub-Custodian shall be entitled to rely on and may
act upon advice of counsel in all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such
advice. In no event shall Sub-Custodian be liable for special,
incidental or consequential damages, even if Sub-Custodian has been
advised of the possibility of such damages, or be liable in any
manner whatsoever for any action taken or omitted upon instructions
from Custodian or any agent of Custodian.
6.2 No Responsibility for Title, etc. So long as and to the
extent that it is in the exercise of reasonable care, Sub-Custodian
shall not be responsible for the title, validity or genuineness of
any assets or evidence of title thereto received or delivered by it
or its agents.
6.3 Express Duties Only. Sub-Custodian shall have no duties
or obligations whatsoever except such duties and obligations as are
specifically set forth in this Agreement, and no covenant or
obligation shall be implied in this Agreement against Sub-Custodian.
Sub-Custodian shall have no discretion whatsoever with respect to the
management, disposition or investment of the Custody Account and is
not a fiduciary to Custodian or Customer. In particular,
Sub-Custodian shall not be under any obligation at any time to
monitor or to take any action with respect to compliance by Custodian
or Customer with the 1940 Act, the provisions of Customer's articles
of incorporation or by-laws, or Customer's investment objectives,
policies and limitations as in effect from time to time.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification. Custodian shall indemnify and hold
harmless Sub-Custodian, any sub-custodian appointed pursuant to this
Agreement and any nominee of any of them, from and against any loss,
damages, cost, expense (including reasonable attorneys' fees and
disbursements), liability (including, without limitation, liability
arising under the Securities Act of 1933, the Exchange Act of 1934,
the 1940 Act, and any federal, state or foreign securities and/or
banking laws) or claim arising directly or indirectly (a) from the
fact that securities or other assets in the Sub-Custody Account are
registered in the name of any such nominee, or (b) from any action or
inaction by Sub-Custodian or such sub-custodian or nominee (i) at the
request or direction of or in reliance on the advice of Custodian or
any of its agents, or (ii) upon Proper Instructions, or (c)
generally, from the Custodian's performance of its obligations under
this Agreement, provided that Sub-Custodian, any such sub-custodian
or any nominee of any of them shall not indemnified and held harmless
from and against any such loss, damage, cost, expense, liability or
claim arising from willful misfeasance, bad faith or negligence on
the part of Sub-Custodian or any such sub-custodian or nominee.
7.2 Indemnity to be Provided. If Custodian requests
Sub-Custodian to take any action with respect to securities or other
assets of Customer, which may, in the opinion of Sub-Custodian,
result in Sub-Custodian or its nominee becoming liable for the
payment of money or incurring liability of some other form,
Sub-Custodian shall not be required to take such action until the
Custodian shall have provided indemnity therefore to Sub-Custodian in
an amount and form satisfactory to Sub-Custodian.
7.3 Security. As security for payment in the event (i) the
Customer requires the Sub-Custodian to advance cash or securities for
any purpose, including the purchase or sale of securities, or (ii)
Sub-Custodian or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection
with the performance of this Agreement (except such as may arise from
its or its nominee's own negligent action, negligent failure to act,
or willful misconduct), Customer hereby pledges to Sub-Custodian all
securities, funds and other assets of every kind which are in the
Sub-Custody Account or otherwise held for Customer pursuant to this
Agreement, and, in the event Customer fails to repay Sub-Custodian
promptly, hereby grants to Sub-Custodian a lien, right of set-off and
continuing security interest in such securities, funds and other
assets.
ARTICLE VIII
FORCE MAJEURE
Sub-Custodian shall not be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its
reasonable control, including, without limitation, acts of God;
earthquakes; fires; floods; wars; civil or military disturbances;
sabotage; strikes; epidemics; riots; power failure; computer failure
and any such circumstances beyond its reasonable control as may cause
interruption, loss or malfunction of utility, transportation,
computer (hardware or software) or telephone communication service;
accidents; labor disputes; acts of civil or military authority;
actions by any governmental authority, de jure or de facto; or
inability to obtain labor, material, equipment or transportation.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
Each of Customer, Custodian and Sub-Custodian represents and
warrants for itself that (a) it has all necessary power and authority
to perform its obligations thereunder, (b) the execution and delivery
by it of this Agreement, and the performance by it of its obligations
hereunder, have been duly authorized by all necessary action,
corporate or otherwise, and will not violate any law, regulation,
charter, by-law, or other instrument, restriction or provision
applicable to it or by which it or its assets may be bound, and (c)
this Agreement constitutes a legal, valid and binding obligation of
it, enforceable against it in accordance with its terms.
ARTICLE X
COMPENSATION OF SUB-CUSTODIAN
Custodian shall pay Sub-Custodian such fees and charges as are
set forth in Schedule B hereto, as such Schedule B may be revised by
agreement between the parties hereto from time to time. Any annual
fee payable by Custodian and any transaction charges payable by
Custodian, shall be paid monthly by invoice, due and payable within
30 days after delivery to Custodian. Out-of-pocket expenses incurred
by Sub-Custodian in the performance of its services hereunder, and
all other proper charges and disbursements of the Sub-Custody
Account, shall be payable by Custodian and shall be paid by invoice,
due and payable within 30 days after delivery to Custodian.
ARTICLE XI
TAXES
Any and all taxes, including any interest and penalties with
respect thereto, which may be levied or assessed under present or
future laws or in respect of the Sub-Custody Account or any income
thereof shall be charged to the Sub-Custody Account by Sub-Custodian
and paid therefrom.
ARTICLE XII
AUTHORIZED PERSONS; NOTICES
12.1 Authorized Persons. Sub-Custodian may rely upon and act
in accordance with any notice, confirmation, instruction or other
communication which is reasonably believed by Sub-Custodian to have
been given or signed on behalf of Custodian by one of the persons
designated by Custodian in Schedule A hereto (each such person, an
"Authorized Person") is it may from time to time be revised.
Custodian may revise Schedule B hereto at any time by notice in
writing to Sub-Custodian given in accordance with Section 12.3 below,
but no revision of Schedule B hereto shall be effective until
Sub-Custodian actually receives such notice.
12.2 Oral Instructions. Sub-Custodian may accept instructions
orally communicated provided that such oral instructions are
reasonably believed by it to have been given on behalf of Custodian
by an Authorized Person. If a written instruction confirming an oral
instruction is not transaction authorized by such oral instruction or
the authorization of Custodian to effect such transaction. To the
extent such oral instruction varies from any written confirming
instruction, Sub-Custodian shall advise Custodian of such variance
but unless a confirming written instruction is timely received, such
oral instruction shall govern.
12.3 Addresses for Notices. Unless otherwise specified
herein, all demands, notices, instructions, and other communications
to be given hereunder shall be sent, delivered or given to the
recipient at the address, or the relevant telephone number, set forth
after its name hereinbelow:
To Customer:
▇▇▇▇▇▇▇▇ FUNDS, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ FUNDS, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Custodian:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ TRUST COMPANY
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Vice President and Chief
Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ TRUST COMPANY
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and
Securities Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Sub-Custodian:
CUSTODIAN TRUST COMPANY
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Trust Operations
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or telephone number as either party shall
have provided to the other by notice given in accordance with this
Section 12.3. Writing shall include transmissions by or through
teletype, facsimile, central processing unit connection, on-line
terminal and magnetic tape.
12.4 Remote Clearance. Written Instructions for the receipt,
delivery or transfer of securities may include, and Sub-Custodian
shall accept, Remote Clearance Instructions (as defined hereinbelow)
and Bulk Input Instructions (as defined hereinbelow), provided that
such Instructions are given in accordance with the procedures
prescribed by Sub-Custodian from time to time as to content of
instructions and their manner and timeliness of delivery by
Custodian. Sub-Custodian shall be entitled to conclusively assume
that all Remote Clearance Instructions and Bulk Input Instructions
have been given by an Authorized Person, and Sub-Custodian is hereby
irrevocably authorized to act in accordance therewith. For purposes
of this Agreement, "Remote Clearance Instructions" means instructions
that are input directly via a remote terminal which is located on the
premises of Custodian and linked to Custodian; and "Bulk Input
Instructions" means instructions that are input by bulk input
computer take delivered to Sub-Custodian by messenger or transmitted
to it via such transmission mechanism as Custodian and Sub-Custodian
shall from time to time agree upon.
ARTICLE XIII
TERMINATION
This Agreement may be terminated at any time by Custodian or
Sub-Custodian upon seven days' written notice to the other party, in
which event the assets then held by Sub-Custodian shall be disposed
of as the Custodian shall direct in writing, and Sub-Custodian shall
have no further responsibility for the Account.
ARTICLE XIV
MISCELLANEOUS
14.1 Business Days. Nothing contained in this Agreement shall
-------------
require Custodian to perform any function or duty on a day other than
a Business Day.
14.2 Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York,
without regard to the conflict of law principles thereof.
14.3 Securities Intermediary. Custodian's jurisdiction as
-------------------------
securities intermediary shall, for the purposes of the New York
Uniform Commercial Code, be the State of New York.
14.4 References to Sub-Custodian. Custodian shall not
circulate, and shall not permit Custodian to circulate any printed
matter which contains any reference to Sub-Custodian without the
prior written approval of Sub-Custodian, excepting printed matter
contained in the prospectus or statement of additional information of
Customer and such other printed matter as merely identifies
Sub-Custodian as sub-custodian for certain assets of Customer.
Custodian shall submit printed matter requiring approval to
Sub-Custodian in draft form, allowing sufficient time for review by
Sub-Custodian and its counsel prior to any deadline for printing.
14.5 No Waiver. No failure by either party hereto to
exercise, and no delay by such party in exercising, any right
hereunder shall operate as a waiver thereof. The exercise by either
party hereto of any right hereunder shall not preclude the exercise
of any other right, and the remedies provided herein are cumulative
and not exclusive of any remedies provided at law or in equity.
14.6 Amendments. This Agreement cannot be changed orally and
no amendment to this Agreement shall be effective unless evidenced by
an instrument in writing executed by the parties hereto.
14.7 Counterparts. This Agreement may be executed in one or
more counterparts, and by the parties hereto on separate
counterparts, each of which shall be deemed an original but all of
which together shall constitute but one and the same instrument.
14.8 Severability. If any provision of this Agreement shall
be invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired thereby.
14.9 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that this
Agreement shall not be assignable by either party hereto without the
written consent of the other party hereto. Any purported assignment
in violation of this Section 14.9 shall be void.
14.10 Jurisdiction. Any suit, action or proceeding with
respect to this Agreement may be brought in the Supreme Court of the
State of New York, County of New York, or in the United States
District Court for the Southern District of New York, and the parties
hereto hereby submit to the non-exclusive jurisdiction of such courts
for the purpose of any such suit, action or proceeding, and hereby
waive for such purpose and other preferential jurisdiction by reason
of their present or future domicile or otherwise.
14.11 Headings. The headings of sections in this Agreement are
for convenience of reference only and shall not affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed and delivered in its name and on its behalf
by its representatives thereunto duly authorized, all as of the day
and year first above written.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ TRUST COMPANY CUSTODIAL TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇.
--------------------------------- --------------------------
(illegible)
------------------------------------
Title: Vice President Title: President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Vice President
▇▇▇▇▇▇▇▇ FUNDS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: President
SCHEDULE A
Signatures of Authorized Persons
Set forth below are the names and specimen signatures of the
persons authorized by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Trust Company to give
instructions both oral and written to Sub-Custodian.
NAME SIGNATURE
▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
SCHEDULE B
Fees and Charges
Custodian shall pay Sub-Custodian $25,000 per annum for services
rendered under this Agreement, such fee to be paid pro rata each
month as provided in Article X of this Agreement.